Plaintiff sues former attorney for legal malpractice
Written by: Michael Talve
This case involves a legal malpractice suit where the plaintiff sued his former attorney for negligence. The plaintiff, in a previous case, lost his lawsuit and questioned his attorney’s actions. The plaintiff’s attorney took a referral fee and never processed the case himself. Also, the attorney suffered narcolepsy while in the courtroom and was unable to appear in court on several instances. The plaintiff alleges that his attorney was negligent for presenting himself as a top-notch attorney, capable of litigating such a case. The plaintiff sued his former attorney for legal malpractice.
Question for Expert Witness
Did the plaintiff’s former attorney act improperly in his handling of the case?
Expert Witness E-004551
“This generally sounds like a botched §1983 action, which may also have asserted, related state law claims. I can say little as to the substantive deviations from the standards of care attributable to the plaintiff’s former attorney without a review of the underlying file. However, based on the description you provide I would need some initial clarification as to (a) whether the former attorney took a referral fee. From that, it would seem that he was acting as the referring attorney to another attorney, who was the attorney of record; and (b) if he was more than just the referring attorney and he went to court (or failed to go to court), then he may have been serving as co-counsel. Whether he would have liability serving as a referring attorney only depends on the jurisdiction where the underlying case was pending. Liability for negligence in the role of co-counsel would, however, seem clear. Obviously, the facts of the underlying case are essential and reviewing how the action was prosecuted on behalf of the client is also critical before any opinion can be expressed. One final point: the former attorney’s physical capability to handle the client's case due to some medical disability is a key question. Generally, if an attorney's medical condition would negatively impact the representation, the attorney has an absolute duty under RPC 1.4 to communicate this information to the client so that the client can determine whether he ought to secure substitute counsel. Assuming he did not communicate his physical disability, he then seemingly deprived his client of the right to seek other counsel who would have been able to properly handle the representation. There are other standards at play here as well, for example, RPC 1.1 (competence); 1.2 (scope of representation), 1.3 (diligence), 1.7 (conflict of interest) as well as possible breach of fiduciary duty for placing his own interests over that of the clients'. I am a practicing attorney, and have twenty-seven years of experience in the field of legal malpractice. I have written multiple expert reports and testified in numerous states on the issue.”